No Surprises in Senate Committee Hearing on NLRB Nominees

There were no real surprises at today’s Senate HELP Committee’s hearing on President Obama’s five NLRB member nominees. The Senate Committee members agreed that the nominees were well qualified for the jobs, and thanked them for their willingness to undertake public service. The nominees spoke about their backgrounds, their desire to apply the law as written and fairly, and their respect for the NLRB as an institution.

But it is clear that there is a partisan divide over the NLRB and its direction over the past four years. This was illustrated most clearly when Senator Scott of South Carolina expressed his displeasure to NLRB Chairman Pearce over the Board’s decision in Karl Knauz Motors, and Senator Warren of Massachusetts followed up with a question allowing the Chairman to further explain that decision.

Perhaps the only “electric” moment in the proceedings was when Senator Sanders of Vermont asserted, “What this debate is about is Republican obstructionism.” Senator Sanders then proceeded to criticize what he views as the excessive use of filibusters by Republicans in the Senate, and threatened to push for a change in the Senate rules which would forbid a filibuster on pending Presidential appointment nominees and allow a straight up or down vote on the nominees on the Senate floor.

This was followed by a colloquy between Committee Chairman, Senator Harkin and Ranking Member, Senator Alexander, concerning the nature of the Senate and its traditions, processes and procedures. It is safe to say that one Senator’s obstruction is another Senator’s deliberation. It is also safe to say that most Senators have perfected the art of disagreeing without being disagreeable, at least to one another.

A vote is currently scheduled for next Wednesday, May 22, in which the Committee can be expected, along party lines, to vote the nominees out of Committee and to the Senate floor for consideration. At that point it is anticipated that one or more of the nominees will be filibustered. If the nominees are stopped by the filibuster, and NLRB Chairman Pearce’s term is allowed to run out on August 27, then there will either need to be some kind of political deal or a possible second round of recess appointments to keep the Board in the business of deciding cases and taking other actions reserved to the Board.

In the meantime, under the direction of the Acting General Counsel, the NLRB regions will continue to process charges and election petitions, and Administrative Law Judges will continue to hold hearings, seemingly unaffected – at least for now – by the legal troubles surrounding the Board appointments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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